Canada’s courts should stay out of matters of deep moral conviction, such as assisted suicideThe National Post, 03 June 2014

CBC The Nationalf’s “Three to Watch” segment on Sunday night discussed the looming controversy over Bill 52, Quebec’s assisted suicide law. The panelists noted correctly that, once passed, the statute will doubtless be subject to constitutional challenge, given its conflict with the criminal code, which falls squarely under federal jurisdiction. The prescriptions of the BNA Act would indicate a straightforward division-of-powers violation: if a province encroaches on federal jurisdiction, the law in question is struck down.

Enter the Charter of Rights and Freedoms, the second half of the constitution, which may come to the rescue of the right-to-die movement. The Supreme Court previously ruled in the Sue Rodriguez case of 1993 that the Charter does not include a right to assisted suicide. But as “Three to Watch” contributor Adam Goldenberg noted, the Court may well revise its judgment from the ’93 case, which rejected Rodriguez’s argument for physician-assisted suicide (PAS) under Section 7, which guarantees “life, liberty, and security of the person”.

Goldenberg went further in predicting that the Court will in fact do so, given that PAS legalization “is the way history is pointing.” I agree with this prediction. It is improbable that the Court, which is generally favourable to socially-progressive causes, would consider the ultra vires argument without also reconsidering the Section 7 argument. Supposing that it would indeed find the Quebec law invalid on point of jurisdiction, failing to revise the previous Charter decision would stop the assisted-dying movement dead in its tracks.

Setting aside the merits or demerits of legalization, there is cause for concern about the process that this social change is taking. The refusal of federal politicians to speak frankly on the issue, let alone to advance debate in Parliament, is conspiring with inter-provincial differences to make the Court the question’s inevitable forum. But it is quite reasonable to ask whether judicial decree is the best means to not only get the euthanasia question right, but also to maintain respect for democracy.

A prospective court ruling along the above lines could amount, for PAS opponents, to one step forward, many steps back. For the justices could reject Quebec’s claim that the law is protected by the province’s health-care jurisdiction, while also “finding” a right to die in the Charter. This would not only validate PAS for Quebec, but also impose it upon all other provinces.

Under the ideas of original intent and deference to precedent, this “finding” expedition would be peculiar. On the one hand, there is scant evidence that the framers of the Charter intended “security of the person” to connote an entrenched right to PAS. If there were such evidence, it is unimaginable that the justices would have ignored it in ‘93. On the other hand, no issues or facts have substantively changed about the issue since the first ruling, aside from a slight increase in public support for the right to die. Such a change in public opinion might be justification for revisiting the issue in the House of Commons, but is hardly reason for the Court to change its previous interpretation.

A healthy democracy does not forfeit its popular authority on matters of deep moral conviction. And under the present regime, there is little recourse for publicly-minded citizens who object to court rulings on social policy, making the Charter an effectively anti-democratic instrument. A far better arrangement is for courts to stay out of these issues altogether. Following parliamentary tradition, political parties should take discrete positions on morally-fraught issues, allowing the public to voice its preference through the ballot box. And if the people are ultimately dissatisfied with a government’s social policy, they can replace that government with one vowing to reverse course.

But given that the Court does not operate according to original intent, and that Canadian politicians seem unprepared to confront the issue directly, a democrat might wish that the case not be heard at all. For if the Court withholds judgment, it will confirm by default the right of Quebec doctors to perform PAS, but will not take the radical step of imposing PAS on the whole country. As is presently the case for access to abortion, the acceptance or rejection of assisted dying would become a matter for individual provinces to determine one by one, contingent upon the attitudes of the population and not the faraway high court.

That isn’t an ideal solution for the partisans of either side, but it might well be the most democratic alternative to a prospective instance of judicial activism.